Posts about secrecy

America is supposed to be a nation governed by principles, which are undergirded by the Constitution and the Bill of Rights and carried into law. The discussion about the government and its capture of *our* data should be held on the level of principles.

* Privacy: Our direct and personal communication in any medium and by any means — mail, email, phone, VOIP, Twitter DM, and any technology yet to be invented — should be considered private, as our physical mail is, and subject to government intervention only through lawful warrant. That is not the case. Thus it is quite reasonable to be disturbed at the news that government can demand and receive communication we believe to be private. Government may call itself the protector of our privacy but it is our privacy’s worst enemy.

* Transparency: The actions of government should be known to citizens. I argue in Public Parts that our institutions should be public by default, secret by necessity; now they are secret by default and open by force. There are necessary secrets. There is a need for intelligence. There I agree with David Simon. I saw people die before me on 9/11 and I fault intelligence or not stopping it.

But we are left out of the discussion of where the line of necessity should be. If President Obama believes in the transparency he talks about and if he now says he welcomes the debate about security and freedom then it should have occurred *before* government took the actions now being reported and not by force through leaks. There I agree with James Fallows that this leak is not harmful — what bad guys didn’t already realize that their phones could be tracked? — and will be beneficial for democracy.

* Balance of powers: The best protection of our nation’s principles is the balance of powers. Yes, Congress passed the Patriot Act and yes, a FISA court does approve the executive branch’s actions. But both our representatives and our justices are prevented from sharing anything with us, as are the companies that are forced to be their accomplices. The true balance of powers is the exercise of democracy by citizens, but without information we have no power and government has it all.

* Freedom of speech and of the press: Information comes to the public from the press, which is now anyone with information to share. And citizens exercise power through speech. But in its jihad against leaks… that is whistleblowers… that is reporting… that is journalism and the public’s right to know, the White House is chilling both the press and speech. I pray that Glenn Greenwald doesn’t have a Verizon phone.

This discussion is less about privacy and more about transparency and speech. The principles most offended here are those embedded in the First Amendment for those are the principles we rely upon to take part in the debate that is democracy.

I am asking for government to behave according to principles. I am also asking companies to do so. Twitter — whose behavior toward developers and users can sometimes mystify me — is apparently the platform most stalwart in standing for its users’ rights as a matter of principle. They apparently refused to make it easier for government to get data. Now one could argue that helping government thwart terrorists is also behaving according to principle. But again we and these companies aren’t allowed to have that debate. So I’d now advise following what is apparently Twitter’s route in only responding to demands, nothing more. And I’d advise following Google’s example in revealing government demands for information (though under FISA, once again, they’re not allowed to reveal — even by a count — them all).

There is much debate and sometimes conspiracy theorizing swirling around about what Google, Facebook, et al did and didn’t provide to government. I take Larry Page’s and Mark Zuckerberg’s statements at their literal word and agree with Declan McCullagh that I so far see no evidence that these companies handed the keys to their servers to the NSA. We know and they have long said that they comply with government orders, whether in the U.S. or China.

Though some are attacking him on this issue and though I often disagree with him on the state of the news business, I again say that I agree with David Simon on the unsophisticated and emotional interpretation of this news. Since the initial New York Times report on NSA “warrantless wiretapping,” I have understood that one of government’s goals is to use data to find anomalies but to do that it has to have a baseline of normal behavior. We’re the normal. This has been going on for sometime, as Simon says; we just haven’t known how.

Are we as a nation OK with allowing government to make such an analysis to find the terrorists’ anomalous behaviour or not? That’s a discussion that should occur according to principles, properly informed about the risks and benefits. Are we OK with government using that same data to fish for other crimes — like, say, leaking a PowerPoint to the Guardian? I am not. Are we OK with government treating whistleblowers and leakers as traitors — starting with Bradley Manning? I am not. I agree with Bruce Shneier: “We need whistleblowers.” Are we OK with government having access to our private communications without warrants? I say: most definitely not, as a matter of principle.

Under a regime of secrecy, assuming the worst becomes the default in the discussion. We assume the worst of government because they keep from us even activities they say are harmless and beneficial. We see people who want to be suspicious of technology and technology companies assuming the worst of them because, after all, we can’t know precisely what they are doing. I agree with Farhad Manjoo about the danger. People in other nations — I’m looking at you, EU — already distrust both the American government and American technology companies, often in the past for emotional reasons or with anti-American roots but now with more cause. You can bet we’ll hear governments across Europe and elsewhere push harder for legislation now in process to require that their citizens’ data be held outside the U.S. and to European standards because, well, they assume the worst. We’ll hear calls to boycott American-made platforms because — even if they try not to go along — their acquiescence to our government means they cannot be trusted. This is bad for the net and bad for the country. The fault lies with government.

This is a story about transparency and the lack of it. It is a story about secrecy and its damages. It is a story about principles that are being flouted. It should be a discussion about upholding principles.

I have just one problem with David Carr’s good column decrying government opacity in the prosecution and trial of Bradley Manning: He lets us in the press (as well as in the chattering blog class) off easy.

Carr doesn’t mention the wrist-slap given The Times by its own public editor, Margaret Sullivan, for not sending a reporter to the Manning hearings.

He also gives newspapers as a group a too-easy excuse for not covering Manning: “Yet coverage has been limited, partly by the court’s restrictions and partly because an increasingly stretched news media business often does not have the time, or the resources, to cover lengthy trials.”

We aren’t going to use that excuse all the time now, are we? “Oh, we couldn’t cover that story vital to the nation and the fate of a free press because not enough of you are paying or because retail advertisers are dying or because Google took our customers.” Yes, our resources are scarce — always have been — and getting scarcer. But this is still a matter of news judgment. What was covered while Manning wasn’t? I’ll bet we can find stories to have sacrificed.

If we’re going to argue that the public still needs editors and their news judgment, then it’s a tad disingenuous to say that this is a story of vital national interest that the government has been trying to hide from us but we don’t have the time to cover it. Isn’t that precisely the story we should be covering? Isn’t coverage just what is needed to keep a watch on government and its efforts at secrecy?

The Guardian’s Ed Pilkington, whom Carr quotes, has maintained coverage of the Manning story long after the splash of the Wikileaks revelations that both papers carried — thus he helps to secure the Guardian’s role as a truly international news organization. Greg Mitchell has also been diligent in pursuing the story. Beyond that, there has been too little coverage from The Times and other U.S. news organizations.

And there has been too little discussion from bloggers like me, I’ll confess. I care about openness, about journalism, and about over-aggressive prosecutions and legislation that demonize technology. So I should have been talking about Manning more and also about the case of Aaron Swartz. These are stories central to the fate of free speech. In both cases, I fear the attention came too little, too late, which makes it all the more vital that we concentrate on them now, for every reason Carr gives.

1. The goal of the press is transparency. We want to shine sunlight on the powerful in public.

2. The press must be transparent. Not to be transparent is to be hypocritical. Opaqueness is not an act of trust.

3. Public means public. When something happens in the public, whether it is seen and heard by one person or by 100, it can now be seen and heard by the world thanks to any one of those witnesses. That’s what public means.

Isn’t that obvious?

Apparently not, given the arguments over Mayhill Fowler, which Jay Rosen adroitly summarizes and comments on, and other debates about the rules of the press, what they are, and who holds them. I think the argument is getting unnecessarily overcomplicated and muddy. It’s simple, as simple as I put forward above.

Now out of these rules, there are some consequences.

Everyone — including Mayhill Fowler — agrees that transparency of her identity and purpose would have been preferable. No one is arguing with that.

I say the rules mean that editors should be training their staffs to be always open, always transparent — even in cruddy little blog discussions. I’m saddened that some don’t.

These rules mean that anything that happens in public is public. Corollary to that: Anything a politician does should be public.

Public figures, especially politicians, already assume that everything they say can and will be used against them in a court of public opinion. So I have no sympathy for Barack Obama — who knew his “bittergate” session was on the record if closed to press invitations, as Jay points out — and Bill Clinton — who was very much in a public place when he spoke about Todd Purdhum.

So let’s say that Fowler didn’t ask the question at the rope line but overheard it: Should she report what she heard? I say yes. Let’s say she asked the question and didn’t report it but the person next to her did. OK? Still yes. Let’s say that person next to her was not a civilian but was a reporter with credentials around the neck? Would that reporter report what she’d heard? You bet she would. Now let’s say someone else asked the question and shared the answer, someone who had never reported, blogged, or published before but who realized that this was something others would want to know, so she went to a blog or forum and retold the story in the comments. So? So what? It’s all public. It’s all reporting. It’s all news if we think it is.

Now the biggest consequence of these simple rules for the press: We, the press, should be making it our sworn goal to eradicate off-the-record and anonymous sourcing and secret deals. Of course, the problem is that is those special arrangements are what reporters believe give them access to the powerful. And access is what makes them powerful, they think. Access, to paraphrase a few hacks (British usage) in Rosen’s post, is what gets them their good stories. Access is also what makes them special: they have it and you don’t. These are the rules that keep the club a club. These are also the rules that corrupt journalists who traffic in them with those they are supposed to be covering and uncovering.

Of course, off-the-record anonymity and secrecy will linger on, especially in investigative reporting (which, remember, is a tiny percentage of the reporting actually done).

But can’t we at least agree that we don’t like off-the-record deals with anonymous sources to keep secrets? Can’t we agree that that is antithetical to rule No. 1 above, to the mission of the press?

And shouldn’t we be happy, as Jay is in his post, that there is more reporting and more sunshine from more witnesses now empowered? Shouldn’t that added journalism be welcomed by journalists? Of course, it should — unless the journalists want to protect their club, which is no longer a tenable position in the public. And keep in mind that as more and more journalists get laid off and become bloggers, they’ll find themselves on the other side of that rope, off the bus, out of the club. I say that shouldn’t matter. Professionalism and standards don’t come with a paycheck.

I was hoping we were getting past the point where there was a line. I was hoping that we were getting to the point that, as Jay says, we could agree that there are more and new systems of trust — rules and ethics — and that we could be open to learning them. I was hoping.

But I think the discussion has gotten so murky that it is time to bring it back to the basics, the essentials. Let’s sing the chorus:

1. The goal of the press is transparency.

2. The press must be transparent.

3. Public means public.

: LATER: Jay Rosen finds in this post by Jeff Bercovici the poster child of what he calls the guild mentality and what I call the clubbyness of journalism. Felix Salmon disagrees with his Portfolio colleague. So Jay, Felix, and I are the anticlub, the unguild.